The Court having received correspondence dated May 15, 1992 from Angelo Vigni [sic], Regional Director of the Office of Thrift Supervision, requesting that the Order of Dismissal in this case include language stating that the dismissal "does not constitute [a] final disposition of the indictment for the purposes of 12 U.S.C. § 1818(g), and is not a dismissal on the merits", AND

The Court having further received correspondence dated May 19, 1992 from Michael S. Ross, Esq., counsel to the defendant, stating that he "would not object to language in the dismissal order in effect stating that the dismissal does not constitute a final disposition of the indictment for purposes of 12 U.S.C. § 1818(g); is not a dismissal on the merits; and is a dismissal based solely upon Mr. Cousin's physical condition",

IT IS ORDERED that the indictment is dismissed against the defendant MICHAEL COUSIN. This dismissal does not constitute a final disposition of the indictment for the purpose of 12 U.S.C. § 1818(g), is not a dismissal on the merits, and is a dismissal based solely upon the physical condition of the defendant MICHAEL COUSIN. (Emphasis supplied).

Thereafter plaintiff retained his present attorney who filed the complaint on February 5, 1993 and an amended complaint on February 11, 1993, seeking a judgment that the dismissal of the indictment in fact amounted to a "final disposition" of the charges against plaintiff and therefore the suspension was no longer in effect. Defendant has moved to dismiss, and plaintiff has cross-moved for summary judgment.

II

As noted above, prior to the entry of the May 25, 1992 order plaintiff's then counsel argued that he could not stand trial because he was physically and mentally incompetent, and adduced testimony of, among other things, severe stress-related physical disorders, arguably fatal should he stand trial, and of a five-year deterioration in plaintiff's ability to function psychologically, culminating in depression and an unwillingness to cooperate with counsel.

The United States Attorney showed great understanding and patience in dealing with plaintiff and his then attorneys, and the dismissal "solely upon the physical condition" spared plaintiff the embarrassing experience of being sent to a hospital for psychiatric examination to determine his mental fitness to stand trial. Plaintiff's then attorneys convinced the court that plaintiff was a shell of the man he once was, and it appeared that he was unable to continue in his former activities.

Defendant was concerned that plaintiff might use the dismissal of criminal charges as an occasion to return to the bank. Defendant thus sought, with the concurrence of the United States Attorney, the emphasized language in the May 25, 1992 order.

At oral argument on these motions the Assistant United States Attorney informed the court that the statute of limitations may now have run on all but one of the eight counts (involving a $ 200 Christmas gift to an Internal Revenue Service agent) in the indictment.

A suspension or prohibition under subparagraph (A) shall remain in effect until the . . . indictment is finally disposed of or until terminated by the agency.

The May 25, 1992 order referred to that section and the effective period for suspensions under it. Plaintiff's now attorney argues that the court should not give the language in the order its plain meaning that it was not "a final disposition of the indictment for the purposes of 12 U.S.C. § 1818(g)." He also contends that continued suspension deprives plaintiff of his Fifth Amendment rights to liberty and property without due process of law.

Under the language in the order plaintiff waived any automatic termination of the suspension. "Waiver is an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938). The court will look to the facts of the case before it to determine "whether there has been an intelligent waiver." Id. Individuals may waive their constitutional rights, but the Supreme Court has said that "courts indulge every reasonable presumption against waiver" of such rights. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S. Ct. 809, 812, 81 L. Ed. 1177 (1937).

Here plaintiff, who was free to go to trial, made an intelligent waiver of any right to have his suspension terminate when the criminal charges against him were dismissed. Plaintiff's attorneys during his criminal proceedings agreed to the language in the May 25, 1992 dismissal order. That language cites to and tracks the statutory provision at issue and can have no other meaning than that plaintiff's suspension would not end with the dismissal.

Once plaintiff waived the statutory termination of his suspension by final disposition of the indictment his recourse was to seek reinstatement by defendant. Under 12 U.S.C. § 1818(g) defendant retains the authority to terminate a suspension notice.

Plaintiff characterizes being subject to defendant's discretion as "remediless limbo." In fact defendant is preparing to hold a new administrative hearing on plaintiff's suspension, pursuant to 12 U.S.C. § 1818(e); although it is under no obligation to do so. Plaintiff is not suffering from a denial of due process.

IV

Finally, this court's holding as to the meaning and effect of the consensual language in the May 25, 1992 order does not, as plaintiff's attorney suggests, extend this court's subject matter jurisdiction beyond its limits. The court is simply interpreting language agreed to between plaintiff, through counsel, and the government. Plaintiff's attorney attempts to buttress this argument by indirect claims that the court compelled plaintiff to accept this language. This is not so. Plaintiff could readily have chosen to go to trial in his criminal case, and this court was prepared to try the case.

V

Defendants' motion to dismiss is granted. Plaintiff's cross-motion for summary judgment is denied.

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